Why the Dormant Commerce Clause is Bogus

Why is the Supreme Court deciding state laws that may burden commerce? The Dormant or Negative Commerce Clause covers cases regarding state laws where Congress has failed to Act. The obvious answer to this question is that the Supreme Court does not want States to pass laws that are discriminatory or provide some type of protectionism. If the Court is successful in removing protectionism among the States then the Court may help eliminate barriers in Commerce that would provide a national market that is equal for all States. However, nothing works like it is intended. There are many reasons why the Dormant Commerce Clause has no place in our judicial system.

First, the Court is not suited to make decisions over economic policy. In modern times, Congress is much better equipped to make decisions over state laws (more infrastructure including the massive regulatory agencies contained within the executive branch).

Secondly, even though the Court has decided many Dormant Commerce Clause cases, this does not mean that their judgment is the final word on the subject. Congress has the final word on the Commerce Clause and they can therefore pass a law that overrules what the Supreme Court decided. For instance, in the United States v. South-Eastern Writers Association (1944) case, the Court overruled Paul v. Virginia (1869) and held that insurance could be regulated by the commerce clause. A year later, in 1945, Congress responded by passing the McCarran-Ferguson Act which overruled the Supreme Court decision. In Marbury v. Madison (1803), Chief Justice Marshall said it was the duty of the Court to say what the law is. However, the Court does not necessarily know what the law should be in cases involving the dormant commerce clause. Hence, the Court is overstepping its bounds and legislating from the bench.

Third, it removes federalism from our system of government and provides more power to the federal government. States should be allowed to experiment with legislation and Congress should adopt those state laws which may work on a national level. In Cooley v. Board of Wardens in 1851 Justice Curtis says “It should be left to the legislation of the states; that is local and not national”.

Fourth, the Court consistently sides with federal laws expanding the powers of the commerce clause. The Court can apply any law that they deem ‘may’ have a ‘substantial impact’ on commerce. The laws do not even have to be necessary and proper – laws may just be convenient. The Court has consistently granted constitutionality to federal laws that may protect the safety of American citizens under the ‘general welfare’ clause. For instance, federal laws such as food and drug safety laws have been enforced using the commerce clause. But the Court acts in the complete opposite manner over state laws interpreted by the dormant commerce clause. For instance, in Philadelphia v. New Jersey the Court held a New Jersey law that prohibited solid waste from outside states to be deposited in New Jersey landfills was unconstitutional because it discriminated against other states. In other words, New Jersey was no longer allowed to protect its citizens from an unnecessary exposure to toxins because the law discriminated. Why isn’t garbage a local problem? Why is solid waste even considered commerce? In Kassel v. Consolidated Freightways the Court found an Iowa law to limit the length of trucks on its highways to 55 feet unconstitutional even if it meant having safer roads. The Court made its ruling despite many other states having similar laws. The Court has consistently held that state safety concerns are not reason enough to even slightly burden commerce. However, federal laws can restrict commerce for safety reasons. This judicial review process is contradictory at best.

In United Haulers Association v. Oneida-Herkmer Solid Waste Justices Scalia and Thomas had interesting concurring arguments. Scalia says that there is only one way to interpret the commerce clause – it is “an authorization for Congress to regulated commerce”, the Court has no business regulating commerce. Justice Thomas says the Negative Commerce Clause has “proved unworkable in practice”. Thomas continues to say “To the extent that Congress does not exercise its authority to make that choice, the Constitution does not limit States’ power to regulate commerce. In the face of congressional silence, the States are free to set the balance between protectionism and the free market. Instead of accepting this constitutional reality, the Court’s negative Commerce Clause jurisprudence gives nine Justices of this Court the power to decide the appropriate balance.” Thomas explains that reasons that may exist today to find legislation constitutional are “reasons that later majorities of this Court may find to be entirely illegitimate.” Thomas uses the example of the 1905 Lochner decision. Just three years after Lochner was decided the Court upheld Muller v. Oregon which was in stark contrast to the Lochner holding that the “right of contract” prevailed over wage laws.

Fifth, the Court applies too many odd rules to Dormant Commerce Clause Cases such as the “market participant” rule. In other words, a State government can make discriminatory laws if the government is an active participant in the market instead of being seen as purely a regulator of the market (Hughes v. Alexandria Scrap, Reeves v. Stake, and White v. Massachusetts). Rules like these seem odd especially considering they do not apply to the Federal government.

Is the Border Wall Constitutional?

California attorney general, Xavier Bercerra, has filed suit against the Trump administration for his plans to build a border wall along the California and Mexican border. The suit claims several violations including environmental concerns, a violation of separation of powers between both the federal government and states (Tenth Amendment violation) that will hurt the State’s tourism as well as between Congress and the Executive. If this goes to the Supreme Court this will be a very tough sell for California for a variety reasons that I will try to outline.

First, it is probable that the Court may decide that it lacks jurisdiction over the case because it is a political question to be decided by Congress and the President. The crux of border wall argument may come down to the Court’s interpretation of Article 4, Section 4 (Protection Clause) of the Constitution which reads, “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” It is important to note that Article 4 is not a Congressional enumerated power outlined in Article 1, Section 8. This is important because Article 4 is not solely a Legislative duty, but a joint duty between Congress and the Executive. I would argue further if Congress fails to act against a potential threat (not just when they are adjourned on recess), the President has the right do so. Thus, the Separation of Powers complaint that immigration and protecting the country against terrorism or the dangers of drug cartels is a Congressional function and Trump is violating the Separation of Powers is nonsense. The Republican Form of Government clause of Article 4, Section 4 has been ruled a political questions issue in Luther v. Borden (1849). In this case the Court held establishing a Republican form of government among the states was a political question to be decided between Congress and the President and the Court had no Jurisdiction. Hence, many would also argue the Protection Clause of Article 4, Section 4 is also a political question. However, it may not be that simple. In Baker v. Carr (1962), the Court ruled that State Houses and Senates had to be apportioned based on population to have a Republican form of government, but the Court uses the equal protection clause as a basis for their decision. The equal protection clause does not apply to the border wall case (since the wall is to cover all states which border with Mexico). But Baker v. Carr is troublesome for Trump because the Court did rule on a political questions case (the Court’s actions are not always seen as consistent). Secondly, the case may not be ripe for the Court to have Jurisdiction. It is impossible to understand the implications the Wall will have on either tourism or the environment before it is built, so the case may not be ripe until an injury or damages have been suffered.

Even if we evaluate a Congressional enumerated power interpretation of the Constitution, California still has no case. Article 1, Section 8 of the Constitution outlines enumerated Congressional powers. Congress actually has no authority over immigration, but only over naturalization. Therefore, California may be correct to say that the Federal Government has overstepped its authority and violated state’s rights by acting on immigration. But the Federal Government has been acting on immigration for years and the Court has upheld this behavior. In Arizona v. United States (2012), the Court held that many provisions of the Arizona immigration law were preempted by federal law. Our history is filled with federal laws over immigration including controversial ones which targeted certain countries to limit their immigration numbers (China and South and Eastern Europe). In other words, federal law on immigration is the supreme law of the land and states cannot violate these laws even when they are controversial (remember, sanctuary cities and states also violate federal immigration laws). In many regards, it makes sense for immigration to be controlled by the federal government since having 50 different state immigration laws would cause a national mess. For instance, it makes little sense for each state to enforce different quotas for immigration. The federal government is well within its powers to build a border wall to control “naturalization” of citizens (those children born to illegal aliens), prevent drug trafficking, prevent terrorism, and even prevent illegal immigration which is costly to citizens and can affect the employment of citizens. The federal government may do what is necessary and proper to carry out the tasks outlined above even if the means chosen to achieve the ends may be harmful to the states. In McCulloch v. Maryland, the Court said a National Bank was Constitutional even if the means to collect taxes was not the most appropriate to accomplish the ends. In fact, many people have held that the National Bank, at times in American history, was harmful to the American Economy. The Federal Government may also treat immigration as commerce. People have been held by the Court to be part of interstate commerce to uphold the Civil Rights Act of 1964 (Atlanta Hotel v. United States and McClung v. Katzenbach). And the Court has ruled that the Federal Government has the authority to prohibit commerce such as lottery tickets in Champion v. Ames (1903) and any product that violated child labor laws in United States v. Darby (1941) which upheld the Fair Labor Standards Act of 1937. Hence, I find nothing illegal about the United States trying to prevent or prohibit immigration based on Commerce Clause precedent. The United States has had immigration laws for centuries and a border wall for decades to control immigration for national security reasons. Both Congress and the President are within their rights to do almost anything Necessary and Proper for national security reasons. The question is: Does the President violate the Separation of Powers by issuing an executive order or by having funding for the wall incorporated in an omnibus bill to bypass Congress? These actions do not violate Separation of Powers any more than Obama’s DACA executive order over immigration or Obama’s pet projects incorporated in the stimulus bills (green spending or the Race to the Top). If the Trump executive order to temporarily curb immigration from certain countries is seen as legal, then a border wall to curb illegal immigration is also legal. At the same time, spending, budgets, and appropriation bills are political questions to be decided between Congress and the Executive branches and the Court has no jurisdiction over these debates and decisions.

The lawsuit filed by California and Bercerra is nothing more than an axe to grind against Trump and an effort to protect their sanctuary immigration laws. Trump should counter sue California to end their practice of sanctuary cities.

It is ironic how most of the Court decisions, outlined in this blog, to defend the Trump wall where bad opinions either on their merits or methodology. But liberals often forget that Constitutional expansions can work both ways and bad decisions will eventually work against them over some issues. This is why interpreting the Constitution using originalism is best for both conservatives and liberals.

Liberal Justices Rightly Interpret Eleventh Amendment

I have not found too many cases where Liberal Justices correctly interpret the meaning of Constitution better than Conservatives outside First Amendment cases. The one area Liberals seem to do a better job is interpreting the Eleventh Amendment. Article III, Section 2 of the Constitution provides a list of judicial power provided to the Supreme Court. The list consists of cases between a State and Citizens of another State; and cases between a State or the Citizens thereof and foreign states, Citizens or Subjects. The 1793 case Chisholm v. Georgia was the first big case for the Supreme Court. In a 4-1 decision, the majority held that Chisholm (Citizen of South Carolina) had the right to bring a suit against a State (in this case Georgia). The Court held that the true sovereign power in the United States belonged to the people over the states. The lone dissenter, James Iredell held that States had sovereign immunity and could not be sued by a Citizen.

Two years (1795) after the Chisholm ruling the Eleventh Amendment was added to the constitution: “The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” This amendment repudiated the Chisholm decision held by the Court. However, in the 1810 case Fletcher v. Peck Chief Justice John Marshall made the following statement: “The Constitution as passed, gave the courts of the United States jurisdiction in suits brought against individual States. A State, then, which violated its own contract was suable in the Courts of the United States for that violation. Would it have been a defense in such a suit to that the State had passed a law absolving itself from the contract? It is scarcely to be conceived that such a defense could be set up. And yet, if a State is neither restrained by the general principles of our political institutions nor by the words of the Constitution from impairing the obligation of its own contracts, such a defense would be a valid one. This feature is no longer found in the Constitution, but it aids in the construction of those clauses with which it was originally associated.” In other words, Marshall does not necessarily think Chisholm was completely repudiated by the Eleventh Amendment. In Marshall’s view, Chisholm was a sound decision that still has a bearing on Constitutional interpretation.

Nearly a century later in Hans v. Louisiana (1890) the Court held that Hans had no standing to sue Louisiana for interest on state bonds he never received because the Eleventh Amendment gave Louisiana sovereign immunity. This was not an easy decision since the Eleventh Amendment says “Citizens of another State” but Hans was from Louisiana. Yet, the Court decided that the founders meant to also include “Citizens of the same State” in the Eleventh Amendment. Interestingly, Justice Harlan concurs with the decision but says “The comments made about the decision in Chisholm v. Georgia do not meet my approval.” He would go on “Besides, I am of opinion that the decision in that case was based upon a sound interpretation of the Constitution as that instrument then was.”

Fast forward another century later in the case Seminole Tribe v. Florida (1996). Congress passed the Indian Gaming Regulatory Act under the Commerce Clause. The Act imposed upon the States a duty to negotiate in good faith with Indian Tribes to generate a contract for gamming privileges. Congress certainly has the power granted under the Commerce Clause to pass this regulatory act since it applies to “Indian Tribes”. When the State of Florida refused to negotiate with the Seminole Tribe, they brought a suit against the state. But the conservative Court followed precedent set by Hans to deny Citizens the right to sue their State because Florida had Sovereign immunity granted by the Eleventh Amendment which restricted the application of the Commerce Clause. Sure, this decision provides states more power over the Federal Government, but it restricts the power and sovereignty of its Citizens.

Justice Souter wrote the dissent to Seminole Tribe which was joined by Ginsberg, Stevens and Breyer. Souter rightly remarks “Because the plaintiffs in today’s case are citizens of the State they are suing, the Eleventh Amendment simply does not apply to them.” For this reason he also believes Hans was also wrongly decided. Souter also points out in Federalist 32 that States have no sovereignty over the regulation of commerce with Indian Tribes. Souter further acknowledges a proposed amendment by Massachusetts Representative Theodore Sedgwick after the Chisholm decision was never ratified. His amendment would have denied “Any Citizen” the right to sue “any State”. Souter asks why this proposal was denied in favor of the one ratified in the Eleventh Amendment? Good question! Finally, Souter admits “The American development of divided sovereign powers was made possible only by a recognition that the ultimate sovereignty rests in the people themselves.” This is certainly consistent with the Chisholm decision and Marshall’s remarks about Chisholm is Fisher. A year later, in Alden v. Maine, the Court made similar arguments and came to a similar decision in Seminole Tribe. I have to side with the Liberal Court on the Eleventh Amendment debate.

The Battle for State's Rights (Part III)

The Court made a stand against Commerce Clause expansion in United States v. Lopez, United States v. Morrison and more recently United States v. Bond. In these cases, the Court held that Federal gun laws, sex laws, and chemical laws were unconstitutional. In these cases, the Court distinguishes between economic issues regulated by commerce and noneconomic issues not regulated by commerce. The conservative Court did not try to overturn precedent, but instead placed limits on the Commerce Clause by not only pointing out noneconomic differences in these cases when compared to FDR economic rulings, but determining “what is truly national and what is local.” Justice Thomas points out “if Congress” as the dissent suggests “may regulate all matters that substantially affect commerce” then there would be no need to enumerate any Congressional powers since they would be covered by the dissents definition of commerce. The dissent also suggests that having federal gun laws are “rationale” and therefore that makes them constitutional. What the dissent fails to suggest is that all states had (and have) gun, sex, and criminal laws that would cover all these cases on the “local” level. Federal powers are superfluous in these instances and they offer nothing to help the prosecution of these crimes. The Court digresses again in Gonzales v. Raich striking down a California law that allowed sick persons, with prescriptions, to grow their own marijuana for personal consumption. In this case, the Court held growing marijuana for personal consumption was an economic activity. In Raich, the most cited case was Wickard which would make one think the decision was questionable at best. Justice Thomas best sums up the evolution of the Commerce Clause in his dissent “There is an inexorable expansion from ‘commerce’, to ‘commercial’ and ‘economic’ activity, and finally to all ‘production, distribution, and consumption’ of goods or services for which is an ‘established interstate market’”. Thomas further observes “Federal power expands, but never contracts, with each new locution, the majority is not interpreting the Commerce Clause, but rewriting it.” Thomas further says “This Court has carefully avoided stripping Congress of its ability to regulate interstate commerce, but it has casually allowed the federal government to strip States of their ability to regulate intrastate commerce – not to mention a host of local activities, like mere drug possession, that are not commercial.”

In the ObamaCare case: NFIB v. Sebelius, although the Court found ObamaCare to be legal via the Spending Clause (ability to tax), the Court did strike down the constitutionality of both the Commerce and Necessary and Proper Clauses. This was important, because the individual mandate did not regulate any existing commercial activity. Roberts said “The Framers gave Congress the power to regulate commerce, not to compel it.” If the Court allowed the constitutionality of this law via the Commerce Clause Congress could pass a mandate for citizens to buy any product they deem as Necessary and Proper to regulate commerce. Yes, that is correct, it would have given Congress the power to regulate economic inactivity as commerce.

The bottom line is that the definition of what is “commerce” has drastically changed from “trade” to include anything that is economic. Also, the definition of what constitutes necessary and “proper” has changed to mean anything that is “convenient”. The Court accomplished its goal of expanding the Commerce Clause by overruling past precedent. However, in more recent history, the Court has started to push back and yield more sovereignty back to the States.

The Battle over State's Rights (Part II)

The Warren Court in Heart of Atlanta Motel v. United States and Katzenbach v. McClung used the Commerce Clause to uphold the Civil Rights Act of 1964. These cases were rightly decided, but by failing to apply the Fourteenth Amendment to these cases, it gave the Commerce Clause even more power. In South Dakota v. Dole the Court held that coercive tactics used by Congress were Constitutional. In this case, Congress was going to withhold a portion of South Dakota’s highway funding if they did not up the drinking age to 21. The Court held since the amount of funding to be withheld was only 5%, this did not amount to coercion, but incentive.

In the past several decades the Supreme Court has tried to rein in some federal powers. Justice O’Connor in Gregory v. Ashcroft says federalism “assures a decentralized government that will be more sensitive to the diverse needs of a heterogeneous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry.” Furthermore “the principal benefit of the federalist system is a check on abuses of government power.” In the same case Justice White’s dissent points out “As long as the national political process did not operate in a defective manner, the Tenth Amendment is not implicated.” In this case the Court held that the Federal Age Discrimination and Employment Act of 1967 did not apply to Missouri placing retirement age limits on Judges.

In New York v. United States the Court held that Congress could not “coerce” States to participate in their mandated law to get rid of low-level radioactive waste. Justice O’Connor explains how delegates chose between the Virginia Plan and the New Jersey Plan at the Constitution Convention. The Virginia plan was chosen because the “expressed objection the New Jersey Plan was that it might require the Federal Government to coerce the States into implementing legislation.” Hence, the “Convention opted for a Constitution in which Congress would exercise its legislative authority directly over individuals, rather than over the States.” Justice White in his dissent claims that the Tenth Amendment does not apply because “We face a crisis of national proportions” and he further laments “For me, the Court’s civics lecture has a decidedly hollow ring at a time when action, rather than rhetoric, is needed to solve a national problem.” Justice Stevens said “Nothing in that history suggests that the Federal Government may not also impose its will upon the several States as it did under the Articles.” Of course, not a single person has been endangered because of this 1992 ruling. Yet, liberals suggest the law is necessary merely because the case was perceived to be a “national crisis”.

In Printz v. United States in 1997 the Court held that Congress could not commandeer state officials to enforce the Brady Act to do background checks for handgun purchases. This was a weird case because liberals used conservative arguments and vice versa. Scalia uses the same argument previously proposed by O’Connor saying “The Framers explicitly chose a constitution that confers upon Congress the power to regulate individuals, not States.” Scalia actually point out what “destroys the dissent’s Necessary and Proper argument however, is not the Tenth Amendment but the Necessary and Proper clause itself.” The dissent provides the history lesson in this case. Justice Stevens correctly points out in Federalist Papers 27, 36, 44 and 45 provides examples of having state officials collecting federal taxes. Stevens also points out several examples of state officials carrying our federal laws such as naturalization lists, alien lists, and vessel seaworthiness. Stevens continued by claiming “In the name of States’ Rights, the majority would have the federal government create vast national bureaucracies to implement its policies. This is exactly the sort of thing that the early Federalists promised would not occur.” Yes, that is a liberal Justice providing a history lesson referencing Federalist Papers and worrying about the size of government. As I said, this case was a like reading a Twilight Zone script. Despite Stevens convincing arguments, Justice Thomas in his concurring opinion makes the most convincing argument saying the Federal Government had no right to regulate guns because the Second Amendment provides persons the right to “keep and bear arms”. However, that argument was never raised by any of the parties during written or oral arguments. Stevens brings credence to Thomas’s argument by saying “Unlike the First Amendment, which prohibits the enactment of a category of laws that would otherwise be authorized by Article I, the Tenth Amendment imposes no restriction on the exercise of delegated powers.” So, if the First Amendment is applicable to curb federal power, maybe the Second Amendment could curb federal power too? That was a good question at the time, but this question was not answered until more recent cases Heller v. DC and McDonald v. Chicago.

The Battle over State's Rights (Part I)

Separation of powers was one of main theories our Constitution was founded. Most of us are familiar with the separation of powers that provide checks and balances between the Legislative, Executive, and Judicial branches of our federal government. These concepts were not new, they were proposed by French philosopher Baron de Montesquieu in the early 1700s and adopted at the Constitutional Convention. The novel concept created by our founding fathers was a different type of separation of powers: federalism. Federalism is dual government formation between the Federal Government and State governments. There are two ways the Constitution structure supports federalism. First, Congress powers are enumerated and well defined and secondly, the Tenth Amendment grants the states and its citizens all other functions of government not enumerated in the Constitution. In the Federalist Papers James Madison points out the Federal Government has very few powers and the States have many. No question the federal government powers have expanded much more than our founders would have expected or wanted through the use of the Spending Clause, the Necessary and Proper Clause, the Commerce Clause, and the Supremacy Clause.

The assault against the States started early in our history when the Supreme Court used the Commerce Clause combined with the Necessary and Proper Clause to overturn precedent. In a two year period the Court overturned the Legal Tender cases just after the Civil War. Initially, the Court ruled that although Congress had the Power to Coin Money, they did not have the power to make Paper Money. That was overruled because it was deemed Necessary and Proper for Congress to issue paper money to fund the War effort. The Court also said in the Legal Tender cases that it is not enough to affirm a law is unconstitutional but it must be proven without a doubt it violates the constitution. In other words, legal decisions should favor the Federal solution over a State solution. The opinion further stated “convenient” measures are necessary and proper and the “degree of the necessity for any congressional enactment, or the relative degree of its appropriateness, if it have any appropriateness, is for consideration in Congress, not here.” Once again, the benefit of the doubt should be with Congress. In Champion v. Ames (the Lottery Case), the Court decided that the Federal Government could regulate lottery tickets giving them the power to not only regulate commerce, but to prohibit commerce. Justice Harlan in his majority opinion noted “But surely it will not be said to be a part of anyone’s liberty, as recognized by the supreme law of the land, that he shall be allowed to introduce into commerce among the States an element that will be confessedly injurious to the public morals.” In other words, it is okay to regulate something like gambling since in his view it is a bad habit.

In the early part of the nineteenth century, the Court denied Congress commerce regulatory power over anything that was economic in nature. The Court held a strong position that Commerce was trade and it did not include manufacturing, production, or economic laws. In Hammer v. Dagenhart, the Court held that Congress had no authority to regulate child labor laws (wages, hours, minimum age, etc.). In United States v. E.C. Knight Company the Court held that manufacturing was not part of commerce and denied Congress the authority under the Sherman Anti-Trust Act to break up the sugar trust (monopoly). In Schechter Poultry Corporation v. United States the Court held FDR’s “Poultry Code” in the National Industrial Recovery Act unconstitutional. Congress did not have the power to regulate everything economic in the Poultry business. In Adkins v. Children’s Hospital the Court held that a minimum wage law for women was unconstitutional. But things would change when in West Coast Hotel Company v. Parrish overturned the Adkins decision just a decade later. The Court established the “substantial effects doctrine” in the case NLRB v. Jones & Laughlin Steel. The Court held that the Steel Company was engaged in “unfair” labor practices. The Court justified its decision by claiming anything “affecting” commerce can be regulated. The Court also ruled in this case that intrastate activities could also be regulated if they have a “substantial effect” or relationship with interstate commerce.

United States v. Darby was an important case because it wiped out previous precedent set in Hammer v. Dagenhart and Carter v. Carter Coal Company decided just a year earlier. Previously, the coal industry was not considered commerce (it was a manufacturing business), but Darby said “manufacturing” was now commerce as well as other economic activities such as wages and hours. Justice Stone’s majority opinion disregards the Tenth Amendment as a “truism”. In other words, the Tenth Amendment has no meaning because it is widely understood that those powers not enumerated to Congress in the Constitution would fall to the states. Stone obviously had a very broad definition of commerce that was beyond its dictionary definition. The biggest blow to State rights was the Wickard v. Filburn case where the Court held that a man (Filburn) could not exceed his wheat crop quota outlined in the Agriculture Adjustment Act even if the excess was for personal use. The Court said (hypothetically) if everyone did what Filburn did, it would have a “substantial effect” on commerce. These cases gave Congress the power to regulate anything economic regardless if it was interstate or intrastate commerce: Congress merely had to deem the “activity” had a “substantial effect” on commerce. In United States v. South Eastern Underwriters the Court overturned Paul v. Virginia which now held that insurance was commerce that could be regulated by Congress.

Trump's DACA Decision was Ingenious

Trump said the Deferred Action for Child Arrivals (DACA) will end in six months if Congress cannot come up with a comprehensive immigration policy. This plan is a smart move by Trump because it places the burden on Congress to act once and for all. Here are some reasons why this is an ingenious move on the part of Trump:

• The liberal outrage from the DACA decision only shows the ignorance of Democrats, liberals, and the media. These fools make it sound as if Trump ended a good law. No president can end a law, only Congress can generate and appeal a law. What Trump ended was an Obama executive order. An executive order is not the law of the land. It can be ended at any time by any president. DACA can at best be called a “temporary” measure. DACA does not fix any problem, it just kicks the can down the road. Anyone can listen to prior statements by Obama suggesting that he cannot bypass Congress to make a new immigration law and that any executive action is only a temporary fix to understand the true status of DACA. Obama and Democrats had supermajorities in 2008 and decided not to act on immigration reform. Hence, any statements by Obama and Democrats criticizing Trump’s actions are disingenuous as best.

• Trump’s actions already incited a negative response from Obama. Obama has broken a long-standing tradition to not criticize a predecessor. This reveals Obama’s true political side of pettiness and misinformation about his DACA executive action.

• Trump can force both Republicans and Democrats to come together to finally put forth immigration reform. If Democrats want to save DACA then they may have to negotiate with Republicans to pay for a boarder wall and higher border security. Republicans can also push for more stringent immigration laws including higher sentences for violators of immigration laws as well as ending sanctuary cities. Republicans can also insist upon that there will never again be any amnesty for any illegal aliens. If Democrats refuse to come to the bargaining table, then they can be painted as the racists for failing to save DACA. I truly believe that Trump has put Democrats on the spot and given Republicans leverage and the upper hand for negotiations. If Congress fails, then Trump can revisit DACA and he can save the day if he wishes to do so.

• If Congress preserves DACA while at the same time Trump enhances border security, then it will refute all the ignorant claims of liberals calling him and Republicans White Supremacists and racists.

• Trump is only overturning bad precedent (Presidents do not make law). No president should violate the Constitution by legislating unilaterally via executive order, especially over highly controversial and vastly complicated issues. Trump is actually following the law, Obama did not. Wouldn’t liberals object if Trump passed, through executive action, bans on abortion or tax cuts for the Wall Street CEOs? They would and they would be correct.

• Trump’s action should instigate dozens of suits that will hold very little merit and will ultimately fail before a majority of courts including the Supreme Court. Even lawsuits trying to block the data obtained from the DACA program from being used by immigration enforcement may not prevail. However, this may be the best chance that liberals have at winning a case.

• Trump’s actions are exposing DACA for what it truly is: “a lie”. The average age of a person in the DACA program is 23 years old. DACA is therefore not about protecting children. Remember, it is the fault of the children’s parents, not legislators or the president. They put their children in the situation they are in. If DACA is permitted to continue it will only influence and encourage tens of thousands of more illegal aliens to come to the United States. DACA is not a sustainable law if it is allowed to continue especially since DACA recipients in most states can collect welfare. Finally, not all DACA recipients are law abiding citizens working jobs that American Citizens do not want to do. DACA will continue to grow unless it is halted with a comprehensive immigration plan.

This is what should happen on DACA:

1. Pass DACA with the caveat that the parents get deported for their children to stay. If parents do not want to be departed the entire family should be deported.

2. Money should be provided for a border wall and better border security.

3. Make Sanctuary Cities illegal.

4. There will be no other amnesty granted in the future for illegal aliens for any reason.

The Supreme Court Invents Fundamental Right of Selfishness

It has not been uncommon for the Supreme Court to invent fundamental rights not found in the Constitution. Two Fundamental Rights the “right to marry (gay marriage)” and the “right to an abortion” make very little sense. In fact, the Court may have well combine these two rights into one: the “right to be selfish”. Let me explain further in this article. Both of these rights were born from the invented fundamental “right of privacy” decided in 1965 case Griswold v. Connecticut.

In 1973, the Court ruled in Roe v. Wade that women had the “right” to an abortion. This is selfish for two main reasons. First, a women can have an abortion for no reason other than she does not want the baby. A women has other alternatives such as putting the child up for adoption. Without even considering the fact that an abortion kills a living person, the choice of abortion is selfish. Secondly, a woman can have an abortion without notifying the father of the child even if the father is married to the women having the abortion. In other words, the decision is a selfish one because it only has to consist of one person to make a decision of such importance. In fact, in Planned Parenthood v. Casey, four dissenting members of the Court held a minor did not have to notify their parents to have an abortion.

The gay marriage case in 2015 Obergefell v. Hodges granted people the fundamental “right” to marry. The Court cited three marriage cases in their decision. In 1964, the case Loving v. Virginia ruled that interracial marriages were legal. In 1978, the case Zablocki v. Redhail the Court decided a state statute that denied a person from marrying because they owed child support was unconstitutional. In 1987, the case Turner v. Safley the Court held prison laws denying inmates the privilege of marriage was unconstitutional. However, these cases are much different than Obergefell. First, they were traditional marriage cases and secondly, people violating the laws in these statutes were subject to criminal charges. Another case, Windsor v. United States in 2013 ruled the federal law: The Defense of Marriage Act was unconstitutional. Obergefell and Windsor were unique for other reasons. Obergefell was one of many plaintiffs and if we include Windsor as a plaintiffs, all of the plaintiffs have something in common: their partners were dead. They filed suit not because of love but because they wanted the “benefits” or government entitlements that go along with marriage. Thus, marriage is not a discriminatory tradition, what is discriminatory are government laws interfering with marriage and placing entitlements to go along with the tradition. Both Obergefell and Windsor cases arguably had no standing in the Supreme Court since they were not facing any restrictions against their liberty: The plaintiffs did not face criminal prosecution, gay marriage was legal in many states, and even when California granted gay marriage partnerships equal benefits, that was not enough. What makes gay marriage selfish is their wanting government entitlements, it has nothing to do with love.

Marriage was just as vital in the colonial era as it is today but our founders make no mention of marriage in the Constitution. Fundamental rights should be something that is deep rooted in American history and this something gay marriage and abortion are not. Fundamental rights are for each person, not a group of people. Fundamental rights such as “liberty” protect each individual from government intrusions, restrictions, and discrimination. That is not case in either abortion (unless you consider the child) or gay marriage.

Although the Court cites the right to privacy in Griswold v. Connecticut in both cases, does privacy really apply? Other than trying to conceal having an abortion from a spouse, there is nothing private about abortion or marriage. This is the danger of inventing a broad and ambiguous Fundamental Right (privacy): it leads to other unwanted rights. Now what can we expect: the right to polygamy, the right to late term abortions, the right to euthanasia, birth quotas, sterilization, and so on.

Hurricane Harvey and the Dangers of Stereotyping

One would think an event like Hurricane Harvey would draw Americans closer and put aside political differences, at least for a while. I believe events like Harvey are now working to polarize and divide Americans further. It is sad, but pundits cannot wait to throw their political rhetoric over the situation. The man-made climate change stories have hit the front page, of course blaming this storm on global warming. If that is not bad enough, other pundits are calling the victims of the Hurricane hypocrites. These stories portray the victims as Nazis, Anarchists, and Secessionists who are being saved by big government. Because of this portrayal of ALL Texas residents as being racists, bigots, and Trump supporters, the State got what it deserved.

The latter stories are stereotypical because it assumes ALL Texans are Nazis, Anarchists, and Secessionists. However, the area’s most affected by Hurricane Harvey are located in Harris County and the large metro areas of Houston, Beaumont, and Port Arthur. These areas demographics consist of a large number of minorities and Democrats. Also, Romney won Texas by nearly 20 points in 2012 and that margin was reduced by more than half in 2016. In other words, a lot of Texans had a rough time voting for Trump. That aside, the stereotyping of Texans is wrong for a number of reasons. First, most of the people conducting rescues were not working for the government, they were average citizens using their own resources (boats) to save the lives of Americans regardless of their gender, race, or creed. Without this type of cooperation, hundreds more would have perished. Secondly, Leftist confuse extreme right-wing behavior with that of moderate limited government. There is a big difference between extremism and folks who want a responsible government. And those who believe in a limited government believe one role of government is to protect citizens from rogue nations and natural disasters (common defense). Most Americans have no issue with the local, state, and federal governments spending money to protect citizens (common defense). On the other hand, they have an issue with the federal government spending money on issues not enumerated in the Constitution.

This type of behavior (stereotyping of citizens) is dangerous for many reasons. First, it is a lie. To classify a State in a category of persons that probably consists of less than 5% of the population is politics at its worst. Secondly, and most importantly, the behavior of those doing the stereotyping is no different than the behavior of those they are classifying as extremists. The history of slavery, gender bias, and other discriminatory behavior in this country was carried out by persons who stereotyped. Yes, stereotyping is a form of discrimination. Southern slave owners stereotyped slaves as being inferior, Eugenicists stereotyped the deformed, intellectually challenged, and other so called “undesirables” as being inferior, and a great number of males stereotyped women as being inferior. Now, we have a great number of Leftists and Democrats stereotyping Texans as being inferior because they are ALL racists, bigots, and non-conformers to the climate change agenda. Stereotyping is hate and it is no different than the position taken by very dangerous persons in our scared history that led to tragic events such as the Civil War. Yes, those stereotyping citizens today would be of the same mind set as those doing discriminatory stereotyping in our history. These are dangerous people. History has a way of repeating and if Antifa and newspapers want to continue to stereotype ALL whites, conservatives, and Republicans into a class of people they are not then the political divide will continue to grow and get worse.

Court Decisions for Emergencies, Safety, and Evil

Liberals claim to be the Party of the minority or the middle class, but that is hardly true. They have used WWI, WWII, and the Great Depression to expand federal intrusions over our personal liberties. They accomplish this by claiming it was necessary because of emergencies such as war or a depression. However, these new powers are not temporary grants, they are permanent. In the name of emergencies we have seen the Court uphold Korematsu v. United States allowing our government to intern 125 thousand Japanese Americans. During WWI we saw the Court uphold the liberal Espionage Act by placing limitations on free speech. The Court held in Schenck v. United States that harmless pamphlets written by the defendant placed a “clear and present” danger and were not free speech. During the Great Depression we saw the Court uphold FDR policies to regulate anything considered economic including how much a wheat a farmer could grow for personal consumption. Most, today, hail all of the FDR economic regulations over work hours, wages, and child labor (this is not trade!). I remember the hassle of trying to get a job as a youth because I was underage. However, I was persistent and started working in restaurants at age 11. I was paid minimum wage under the table. I was not abused and it was my choice so I can save money to go to college. My family was poor and we needed money. This is how these laws prohibit “liberty”. Even as early as the Civil War the Court expanded its “commerce” and “necessary and proper” powers in the Legal Tender cases. These cases allowed the Federal government to not only “coin money”, but to create paper money.

Liberals have made similar types of decision for safety purposes or in the name to eradicate evil. The progressive Court gave the federal government the power to not only regulate, but to prohibit commerce. Gambling and the lottery were considered vices and hence the Court granted the federal government the right to prohibit lottery tickets from going across state lines (this is not trade!). In Plessy v. Ferguson the Court said that “equal but separate” was not discrimination and it was therefore constitutional. The Court theorized having Whites and Blacks separate was needed for safety purposes. In Bradwell v. Illinois the Court held that a woman who was denied practicing the law (she had a law degree) was constitutional for her safety since woman could not hold up to the rigors of hard work. In Buck v. Bell the progressive Court held that sterilizing the intellectually challenged was needed to clean up our gene pool for the safety of Americans. In Skinner v. Oklahoma, the Court finally placed some limitations on sterilizing violent prisoners in the name of public safety to rid our society of evil. In the Slaughter House cases, which is taught today as being a sound decision, the Court wrote the privileges and immunities clause out of the Fourteenth Amendment. That clause was passed just 5 years earlier and was intended to apply the Bill of Rights and personal liberty to the states (to stop discrimination). That is something important to write out of our Constitution. Of course, there is Roe v. Wade that allows the abortion of a child for no reason other than that the women does not want the baby. That is evil beyond anything imaginable and defies human decency.

Some may say that many of these cases are old laws and they would not happen today. That being said, many of these precedents have never been over turned: Korematsu, Buck, and Schenck are still valid laws. Consider the 2010 case United States v. Comstock where the Court ruled that a federal statute which allowed the government to hold violent criminals and sex offenders in prison longer than their sentences. I have always been in favor of longer sentences for violent and sex crimes, but this is not the way to do it. Holding over prisoners past their sentences is an obvious violation of their personal “liberties”. Liberties are violated anytime the government constrains or restricts personal freedoms and that is what is happening in Comstock. What is even scarier is that the Court expanded federal powers through the necessary and proper clause to uphold this statute. In his concurring opinion, Justice Kennedy cites one of the worst Supreme Court decisions of the 1950s: Williamson v. Lee Optical. The Court said “But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that might be thought that the particular legislative measure was rational to correct it.” Remember, the Court denied Lee Optical the right to do what Lens Crafters has done for decades. Kennedy would further argue “This is a discrete and narrow exercise of authority over a small class of persons already subject to the federal power.” In other words, the statute is permissible since it only violates the “liberties” of a few prisoners. This is the definition of discrimination, the statute does not treat all prisoners the same. Comstock is aimed at “protecting society from acts of sexual violence, not toward “carrying into Execution” any enumerated power”. Justice Thomas says the statute “comes perilously close to transforming the Necessary and Proper Clause into a basis for the federal police power that we have rejected.” In fact, not one of these laws or cases are necessary because they do not help carry out an enumerated power.